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Second Amendment
#866199 07/02/03 03:26 PM
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This one should be worth at least 350 posts, about 340 of which will avoid the two questions I am about to pose: wink

The Second Amendment reads as follows:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The two questions are (and the ONLY two question are these -- I am not interested in your opinions on gun control):

1) IF the intent of the Second Amendment was simply to ensure that the people could keep their muskets, AK47s, and WMDs, why doesn't it simply read: "The right of the people to keep and bear arms shall not be infringed."

and

2) This has to do with punctuation: there is a comma after the word "arms". Grammatically, this would mean that the main clause is "A well regulated militia....shall not be infringed." Since that IS what it says, was the point simply to protect the existence of "militias"? (including, of course, the need for guns as part of them.)

Those of you who wish to discuss gun control, please set up your own forum. I am simply interested in why the Amendment is written the way it is.

P.S. Anyone who posts their views about gun control on this forum owes me $10. I'm sending Cousin Vinnie. I really do want a different discussion.

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Re: Second Amendment
#866200 07/02/03 03:37 PM
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To answer your first question, there were many among the framers of the Constitution who felt that writing an amendment that explicitly states the right of the people to keep and bear arms shall not be infringed was the same as admitting that the government could actually infringe on such a right in the absence of such an amendment. Others felt that the should "cut the cards" so to speak and that some explixcit definition of the right was required. This is why the amendment is worded the way it is as a sort of compromise.

To the second question I have to ask what the purpose of including "to keep and bear arms" would be at all if it was not meant to be part of the subject for "shall not be infringed".


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Re: Second Amendment
#866201 07/02/03 03:38 PM
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I'm tempted to discuss gun control, and I look forward to meeting cousin Vinnie.

Would you like him buried, or cremated? :p

Both questions are pretty simple:

1. Use of the word militia. The militia was, and in my mind still is, pretty much every able-bodied male residing in the country at the time.

However, by the use of that word is does contain the seeds for military service. Which is also fine with me - I have no problem going to my gun cabinet to defend the country, in an organized fashion(although the sniper's role appeals - combines woodcraft, cunning, and shooting ability). And ....

2. Commas are often used for emphasis, as was done in this case. It is a reaffirmation of the personal protection belief, which was well rooted in society at the time.

It means exactly what it says.


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Re: Second Amendment
#866202 07/02/03 03:38 PM
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BTW, the framers were dead set against gun control. :p


Better to light one small candle than to curse the %&#$@#! darkness. :t:
Re: Second Amendment
#866203 07/02/03 03:42 PM
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BTW again, here is some background on the source of the Second Amendment:

Background


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Re: Second Amendment
#866204 07/02/03 03:43 PM
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I think your first point is a good one. You are using a device frequently employed by courts to parse statutes: "If the legislature had meant to say XYZ, then they would have said XYZ, not TUVWXYZ."

As to your second point, the one having to do with the comma after "arms," I am dubious. I think it is simply an artifact of the way commas were used in 17th Century English, i.e., too frequently and rather strangely, at least to the modern reader. Cf. the comma after "militia."

On your larger point, no less an authority than the late Warren Earl Burger, no slouch at consitutional interpretation, after his retirement was vociferous in his public statements that the amendment means only that the states have the right to raise and maintain militias (now called the National Guard), and nothing more.

In compliance with your strictures against comments about gun control, I refrain from stating my views. I will simply note that I hated the movie "Ben Hur."

I note, by the way, that now that the English bloke has vanished from Maestronet, you have reappeared. That's a good swap.

Re: Second Amendment
#866205 07/02/03 03:44 PM
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Quote
Originally posted by JBryan:
To answer your first question, there were many among the framers of the Constitution who felt that writing an amendment that explicitly states the right of the people to keep and bear arms shall not be infringed was the same as admitting that the government could actually infringe on such a right in the absence of such an amendment. Others felt that the should "cut the cards" so to speak and that some explixcit definition of the right was required. This is why the amendment is worded the way it is as a sort of compromise.

To the second question I have to ask what the purpose of including "to keep and bear arms" would be at all if it was not meant to be part of the subject for "shall not be infringed".
Interesting thinking. On your second point, the grammatical construction could be (in modern parlance) something like:

"The need for there to be well-organized militias (which, of course, assumes the right of folks to keep and bear WMDs within them) shall not disappear simply by virtue of the fact that there is now a national government."

To be specific, I've always thought (as did the legislature of New York and several other states) that the Founding folks saw that there was likely to be a real threat from a standing army, and therefore the "right to bear arms" (whether there or not -- I'm not going to discuss that) is in any case the sub-point; the main point is the need to maintain militias as a counterbalance to the chief threat. The placement of the comma (if not simply a grammatical wierdness) might support such a reading.

Does it make sense in 18th century English to say,

"A well-regulated militia shall not be infringed."?

(I honestly don't know, and I'm the Oxford-educated English major around here! :p )

Re: Second Amendment
#866206 07/02/03 03:55 PM
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Not exactly. More like:

"The need for there to be well-organized militias assumes the right of folks to keep and bear WMDs within them and that right shall be presumed to be inviolate by a national government even though we are making sure and proscribing its infringement anyway.


Better to light one small candle than to curse the %&#$@#! darkness. :t:
Re: Second Amendment
#866207 07/02/03 04:03 PM
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If you can convincingly explain why the Bill of Rights, certainly the first nine amendments, would protect the rights of individuals except for the Second Amendment, then you have an argument. Otherwise, you're just pointing out the horribly inconsistent viewpoints of liberals and the ability to defy logic to promote a viewpoint inconsistent with fact.

Marc

Re: Second Amendment
#866208 07/02/03 04:07 PM
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Sure. Don't disagree. The point of well-regulated militias COULD BE to defend individuals against the encroachment of the national government. Similar to the 1st Amendment (as discussed in other forum), whereby the first part guarantees freedom FROM religion, second part freedom OF religion.

Sir -- I am NO liberal; and I find that an affront. laugh

Re: Second Amendment
#866209 07/02/03 04:11 PM
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I didn't call you a liberal. wink

Marc

Re: Second Amendment
#866210 07/02/03 04:18 PM
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Well, then I guess I was convincing. wink

Re: Second Amendment
#866211 07/02/03 04:21 PM
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Quote
Originally posted by shantinik:
The point of well-regulated militias COULD BE to defend individuals against the encroachment of the national government.
I thought the Bill of Rights was just that and not a Bill of Powers Granted by the Benevolent Government.

I like Bill of Rights better. It's shorter and easier to remember. laugh

Marc

Re: Second Amendment
#866212 07/02/03 04:22 PM
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Ah, but would you admit to being a Leftist?

And I would always consider you more of a behind, than an afront. :p


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Re: Second Amendment
#866213 07/02/03 04:29 PM
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Quote
Originally posted by o2photo:
Quote
Originally posted by shantinik:
[b]The point of well-regulated militias COULD BE to defend individuals against the encroachment of the national government.
I thought the Bill of Rights was just that and not a Bill of Powers Granted by the Benevolent Government.

I like Bill of Rights better. It's shorter and easier to remember. laugh

Marc[/b]
Fair enough, brings me back to the first question, then -- why the need for all that "militia stuff"? Why not "The right to keep and bear WMDs shall not be infringed."?

(My question is a serious one, not meant to bait, nor meant to be an argument about gun control -- as I see it, most state constitutions defend the right to WMDs anyway, so the 2nd Amendment for that purpose is not particularly important.)

Re: Second Amendment
#866214 07/02/03 04:31 PM
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The original intent would be to codify, and federalize that right, would it not?

You know, the Constitution trumps state law view.


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Re: Second Amendment
#866215 07/02/03 04:35 PM
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MikeP, the milita is not now, nor has it ever been, the National Guard. Whatever gave you that idea? Not only does the National Guard not serve the purpose of protecting oneself *from* the state (it *is* the state) but the guard can't take their weapons home with them, a requirement of the militia.


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Re: Second Amendment
#866216 07/02/03 04:36 PM
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I'd be curious to know the context in which the word militia was used, and I would wager that the above explanation (able bodied individuals in a time of need) more accurately describes a militia in the those days.

As to the 'well regulated' part, I have to believe the context they used it in is defined by 'To adjust (a mechanism) for accurate and proper functioning,' meaning if the people were not free to bear (keep) arms, they, by definition would not be 'regulated,' or able to function properly to defend the bill of rights from an encroaching government. If it were a government regulated (different meaning) militia, it is a dangerous conflict of interest.

Marc

Re: Second Amendment
#866217 07/02/03 04:38 PM
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This is one of those discussions that has lost its lustre for me. It boils down to...ain't never going to get rid of people's guns - right or wrong - so why bother to discuss?

The only thing that makes me happy to think about is a mutually assured destruction kind of philosophy -- something along the lines of "we get rid of abortion if we also get rid of gun ownership." Each side agrees to give up one "nonnegotiable" issue -- "School prayer" for "gay marriage" or "no death tax" for "prescription drugs for the elderly."
Hmm??

Ken

Ken

Re: Second Amendment
#866218 07/02/03 04:42 PM
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Actually, Shant, I can't get you federally sanctioned WMDs, but I can get you a pretty nice battle rife, gen-u-wine guvmint issue:

http://www.odcmp.com/

Shoot it in good health, y'hear. wink


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